Mr H and the Department of Justice and Equality (FOI Act 2014)

Whether the Department was justified in its decision to refuse further records relating to the applicant under section 15(1)(a) of the FOI Act

25/01/2018

Background

This review has its origins in a number of separate but similar requests the International Transport Workers Federation (the ITF) submitted to the Department on behalf of a number of individuals, including the applicant. In this case, the ITF sought access, on behalf of the applicant, to all records in the possession of the Irish Naturalisation and Immigration Service (the INIS) relating to the applicant. In particular it requested all records relating to the applicant's immigration history, to include any application made for a work permit under the Atypical Working Scheme for Non-EEU (sic) crew in the Irish fishing fleet.

On 16 June 2017 the Department refused the request under section 15(1)(i) of the FOI Act on the basis that all relevant correspondence should be in the possession of the applicant. The Department subsequently affirmed that decision after the applicant sought an internal review of the original decision.

On 11 September 2017, the applicant's legal representative sought a review by this Office of the Department's decision. During the course of this review and following correspondence with this Office, the Department released four records to the applicant. However, the applicant was not satisfied that he had received all relevant records.

I have decided to bring this review to a close by way of a formal, binding decision. In carrying out the review, I have had regard to the correspondence between the Department and the applicant and to the communications between this Office and both the applicant and the Department on the matter.

Scope of Review

This review is concerned solely with whether the Department was justified in refusing access to further relevant records coming within the scope of the applicant's request.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner's role in cases such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

In correspondence with this Office, the Department explained that as the FOI requests it received, including that relating to the applicant, were submitted by the ITF who represent sea fishers, it was considered that the requests related only to the Atypical Sea Fisher applications. However, it is clear from the wording of the request as set out above that the applicant was, in fact, seeking access to all records held relating to him, and not just those relating to his application under the scheme in question.

The Department has acknowledged that its narrow interpretation may have been incorrect and it offered to forward the request to other relevant areas of the Department if the applicant still requires additional information.

In these circumstances, I must find that the Department has not taken all reasonable steps to ascertain the whereabouts of all of the records sought. While the Department has indicated its willingness to expand the search for records beyond the confines of its original decision, it is my view that the decision of the Department should be annulled. The effect of my finding is that the Department must consider the applicant's request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the Department's decision.

Finally, while it is not necessary for me to make a finding in this case on the Department's original decision to refuse access to the records sought under section 15(1)(i) of the FOI Act, I would make the following comment for the benefit of the Department. Section 15(1)(i) of the FOI Act provides for the discretionary refusal of a request where the request relates to records already released to the same or a previous requester, and where the records are available to the requester concerned or it appears that the requester is acting in concert with a previous requester. In simple terms, if the Department has already released the records to the requester and they are available to the requester, then the Department may refuse the request.

Generally, if a body wishes to refuse a request under section 15(1)(i) I would expect it to be able to show that the records sought were previously released to the requester and to explain why it considers that they are available to the requester concerned. In such cases, I would expect the body to consider any supporting evidence provided by the requester as to why the records sought are not available to him or her.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department's decision to refuse access to additional records relating to the applicant and direct it to conduct a fresh decision-making process in respect of the applicant’s original request.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.